What’s in Australia’s New Laws on Foreign Interference in Domestic Politics

Australia passed national security and foreign interference laws at the end of June that Attorney General Christian Porter has called the country’s biggest counterintelligence overhaul in decades. The legislation includes tougher penalties for traditional espionage activities—such as leaking classified information and interfering with public infrastructure—along with sweeping provisions aimed at combating foreign interference and a registration scheme for agents of foreign political actors.

The laws are part of a package: The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 amends Australia’s Federal Criminal Code to introduce the new national security offenses, and the Foreign Influence Transparency Scheme Act 2018 establishes a registration scheme for communications activities undertaken on behalf of or in collaboration with certain foreigners. The Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017, which has yet to be passed, would ban foreign political donations along with other changes to electoral laws. The laws come at a time when governments worldwide are considering how to combat foreign interference in domestic politics. Australia’s legislation represents an aggressive approach, potentially covering a wide range of political expression without presenting any proof of harm or illegitimate foreign interests. Notably, in contrast to many efforts in other countries, the Australian legislation does not directly address the role of social media in spreading foreign interference and disinformation.

Background

First introduced into Parliament in December, the draft bills came under heavy criticism for broad definitions within the text that threatened to impose on journalists, charities, protesters and possibly academics new duties to register and disclose foreign contacts and potential liabilities for failure to do so. International human rights observers argued that the legislation would stifle legitimate political expression and chill efforts to hold government accountable. The American Chamber of Commerce in Australia even expressed concerns it would no longer be able to hold events in the country aimed at members of Parliament. Following these criticisms, an unusually large number of amendments were made through the committee process before the legislation was rushed through Parliament with bipartisan support in advance of special elections scheduled for the end of July. (The National Security Legislation Amendment and the Foreign Influence Transparency Scheme Act are law; the funding and disclosure reform, however, appears to be on the backburner.) The unusually compressed timeline has created additional uncertainty about the scope of the laws and their implementation.

As part of a media campaign to pressure the opposition to pass the legislation quickly, the attorney general warned that foreign agents were increasingly “causing general chaos in the context of elections” around the world and urged that the laws be put in place before Australia’s next large democratic event. He referred to Russian interference in the 2016 U.S. elections, as did Prime Minister Malcolm Turnbull when the legislation was first introduced.

Of course, neither the Russian troll factory that interfered in the U.S. presidential election nor the gatherings of the Chamber of Commerce are the legislation’s key targets. The legislation was drafted amid a political storm about Chinese influence in Australia after top-secret intelligence reports detailed extensive influence operations at all levels of government for the past decade, revelations in 2016 about millions of dollars in Chinese political donations, a scandal involving a senator’s relationship with a Chinese businessman, and concerns about the Chinese Communist Party monitoring and manipulating Chinese nationals in Australia.

Foreign Interference Offenses

Under the legislation, it is illegal for a person to knowingly engage in covert conduct or deception on behalf of a “foreign principal” (which is defined to include any foreign government, foreign political organization, or related entities or persons) with the intention of influencing an Australian political process, the exercise of a vote or prejudicing national security. The maximum penalty is 20 years imprisonment if the conduct was intentional or 15 years if done recklessly. Although an amendment clarified that mere “embarrassment” is not sufficient to prejudice national security, the terms used in the legislation are otherwise broad. National security is defined not only as the defense of the country but also its “political, military or economic relations” with other countries. This capacious definition could cover almost any political matter in which a foreign power might be interested.

It is also illegal to attempt to influence a target in relation to any political process or exercise of an Australian democratic right (which the legislation leaves undefined) on behalf of or in collaboration with a foreign principal if this foreign connection is not disclosed to the target. Again, the maximum penalty is 20 years’ imprisonment if done intentionally and 15 years if done recklessly. It is not necessary that the agent “have in mind a particular foreign principal” when engaging in the conduct. Here, too, the provision’s reach may be vast. It could potentially cover any attempt to persuade an Australian on a matter of policy if there is an undisclosed relationship with foreign principals or someone acting on their behalf.

Registration Scheme

A person who undertakes any general political lobbying or any kind of communications activity for the purpose of political influence on behalf of a foreign principal—that includes any foreign political organization—must register with the government within 14 days. Failure to do so is punishable by two to five years imprisonment, depending on whether the person knew she had to register. Again, the definitions are broad. Activities covered by the statute include those directed to any section of the public, and influence includes “affect in any way.” There is no requirement that actual harm or influence is shown before the offenses can be charged.

This scheme is modeled on the U.S. Foreign Agents Registration Act (FARA). The Australian scheme is narrower than FARA in some ways: The Australian definition of a foreign principal only includes foreign governments, political organizations, and related entities and individuals, whereas FARA defines a foreign principal as any non-U.S. person. But in other ways, the Australian scheme is considerably broader. This legislation does not include a FARA-style exemption from registration for those already registered as political lobbyists, and includes greater powers to ensure compliance, including powers to compel the production of information. This follows a recent U.S. Justice Department inspector general’s report on FARA, studied and referred to by the Australian Attorney-General’s Department, that found that evidentiary hurdles and lack of powers to compel production of records has significantly hampered enforcement of the act.

The Australian government has been quite open that the registration scheme is intended to be prophylactic—it aims not merely to catch people engaged in foreign interference (who are the targets of the new criminal offenses) but also to inform the public when foreign powers lobby politicians or engage in political influence through arrangements with agents that might otherwise be hidden. Throughout the progress toward passage of the legislation, the Attorney-General’s Department has affirmed Australia’s commitment to freedom of expression, saying that transparency requirements in the bills do not infringe it. The intention, the department has said, is to provide a “suite of investigative options.”

With such a broad reach, however, the potential chilling effect of the registration requirements is an obvious concern. Australia is the only Western democracy without a bill of rights. Although the High Court has found that there is an implied freedom of political communication inherent in the Australian Constitution, it is more limited than U.S. free speech jurisprudence. A recent case suggested that the High Court will not consider chilling effects as a prima facie breach of that freedom. The court may confront the question again, however, if a constitutional challenge is brought against the new legislation, as seems likely.

Australia’s Take on a Global Issue

As Australian politicians repeatedly emphasized while the legislation moved toward passage, foreign interference in democracies is a growing global challenge. Russian interference in the 2016 U.S. election prompted governments around the world to give the issue greater attention and provoked a raft of legislative proposals. In many countries, however, the focus has been on intermediaries such as Facebook, pressuring social media platforms to stem the tide of fake news and to provide greater insight into political communications during elections.

While charges have been filed against 13 Russians for interference in the U.S. election as part of the Mueller investigation, public efforts to prevent similar activities—within the U.S. and elsewhere—have largely aimed at getting social media companies to better police the content on their platforms. There have been no big moves to amend FARA, but legislation has been drafted to require greater transparency for political advertising on social media. Public pressure has prompted Facebook, Google and Twitter to adopt transparency schemes and to devote more resources to cleaning up foreign interference on their platforms. The European Union has similarly targeted the social media platforms, threatening regulation if they fail to satisfactorily tackle the problem of disinformation on their sites. Germany has passed laws that expose these companies to steep fines if they fail to remove certain offending material within 24 hours.

By contrast, the Australian legislation, on its face, seems not to target social media companies. This may be because little is known about the extent of misinformation on social media platforms in the country—the companies are notoriously reticent about data sharing, and extensive academic studies in the U.S. have shed light only on small slivers of the problem. But if little is known about how misinformation spreads in the U.S., there has been even less study of it in smaller markets such as Australia. The recent report by Australian intelligence agencies that apparently stoked fears of Chinese influence operations and triggered the legislation has not been made public.

Australia may also lack leverage. Efforts to pressure multinational internet giants have not always proven successful—a recent dispute with Amazon about local tax rules resulted in Amazon restricting Australian customers’ access to its global stores.

It is possible, though, that the laws might cover social media companies. Some have suggested that in certain cases, social media companies or some users may have to register under the new laws. Submissions from the Law Council of Australia during the public consultation process suggested this was a viable reading of the legislation, and the Labor Party highlighted this as a potential unintended consequence. It is unclear whether this is how things will operate. The uncertainty might be the result of lax drafting or strategic ambiguity. In one estimate, the government said it had budgeted for 500 registrations under the scheme. This would seem to be an underestimate if meant to cover all social media communications in Australia for the purpose of political influence in collaboration with any foreign political organization. But even if everyone liable fails to register, the “suite of investigative options” will remain on the books, ready to be used in cases the government decides warrant it.

Evelyn Douek is an S.J.D. candidate at Harvard Law School, studying international and transnational regulation of online speech. Before coming to Harvard to complete a Master of Laws, Evelyn clerked for the Chief Justice of the High Court of Australia, the Hon. Justice Susan Kiefel, and worked as a corporate litigator. She received her LL.B. from UNSW Sydney, where she was Executive Editor of the UNSW Law Journal.